Date: 20061207
Docket: T-66-86A
Citation: 2006
FC 1467
Ottawa, Ontario,
this 7th day of December, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SAWRIDGE
BAND
Plaintiff
-
and -
HER
MAJESTY THE QUEEN
Defendant
-
and -
CONGRESS
OF ABORIGINAL PEOPLES,
NATIVE
COUNCIL OF CANADA (ALBERTA),
NON-STATUS
INDIAN ASSOCIATION OF ALBERTA
and NATIVE
WOMEN=S ASSOCIATION OF CANADA
Interveners
Docket:
T-66-86-B
BETWEEN:
TSUU
T=INA FIRST NATION
Plaintiff
-
and -
HER
MAJESTY THE QUEEN
Defendant
-
and -
CONGRESS
OF ABORIGINAL PEOPLES,
NATIVE
COUNCIL OF CANADA (ALBERTA),
NON-STATUS
INDIAN ASSOCIATION OF ALBERTA
and NATIVE
WOMEN=S ASSOCIATION OF CANADA
Interveners
REASONS FOR ORDER AND ORDER
THE MOTION
[1]
The
Plaintiffs are seeking leave to call the following witnesses at trial:
Chris Shade
Joe Whitehead
Reg Crowshoe
Wayne Roan
William Dreaver
BACKGROUND
[2]
This is
the latest in a series of motions concerning the Plaintiffs’ witness list and
will-says that I last dealt with in my decision of November 7, 2005. The full
background and the underlying issues are set out in full in the reasons to that
decision.
[3]
In effect,
the Plaintiffs are seeking reinstatement of five named witnesses who were
excluded in accordance with my November 7, 2005 decision and previous, related decisions.
In my decision of October 18, 2004 I struck all of the Plaintiffs proposed
witnesses for non-compliance with will-say and other requirements and then gave
them an opportunity to seek redemption in the motion that resulted in my
decision of November 7, 2005.
ARGUMENTS
[4]
The arguments
of the parties and the Interveners are set out in full in the materials filed
with this motion and were supplemented by an oral hearing in Edmonton on November 29, 2006.
[5]
In
essence, the Plaintiffs say that my Reasons and Order of November 7, 2005
contemplate that they may seek leave of the Court to reinstate these named witnesses
and (in the case of four of them) adjust their will-says in accordance with directions
given by the Court.
[6]
The
Plaintiffs also rely upon Rule 8 of the Federal Courts Rules, 1998 and
say that they satisfy the criteria for an extension of time to bring these
witnesses forward and serve will-says for them. Finally, the Plaintiffs say that
the will-says for all five of the witnesses are now compliant with previous
orders of the Court dealing with the form and content of will-says.
[7]
The Crown
opposes the motion on the grounds that my November 7, 2005 decision does not
contemplate and, in fact, rules out the reinstatement of these witnesses and
the suggested revisions to four of the will-says.
[8]
The Crown
also says that, even if the Plaintiffs are not precluded from seeking the
redemption of these witnesses by my November 7, 2005 decision, the Plaintiffs
cannot satisfy Rule 8. What is more, even if the Plaintiffs could satisfy Rule
8, the Crown says there are continuing problems with individual will-says that
should exclude these witnesses and their proposed evidence.
[9]
The Interveners
are, by and large, supportive of the Crown’s position. NCCA, however, believes
that Elder Crowshoe should be considered for reinstatement, but the Court
should vet his original will-say for compliance rather than the revised
version.
ANALYSIS
General
[10]
This motion
represents a continuation of problems related to the Plaintiffs’ witness list
and will-say statements that have significantly delayed progress towards
trial. The problems were inevitable, to some extent, given the significant
disparity between the Plaintiffs and the other participants over the scope of
the pleadings. However, quite apart from this fundamental difference of
opinion, the Plaintiffs have created difficulties for themselves by not fully
complying with various Court orders dealing with witnesses and will-says.
[11]
In this
motion, the Plaintiffs are really seeking two concessions:
a)
Reinstatement
of the five named witnesses to the witness list of those persons who may be
called to give evidence at the trial; and
b)
Leave of
the Court to renovate four of the will-says.
[12]
These two
issues are intertwined because reinstatement of a witness is dependent, among
or things, on a compliant will-say; but the Plaintiffs also feel they are
following the Court’s guidance in bringing forward renovated will-says for four
of these witnesses.
[13]
The
Plaintiffs present counsel have now had an opportunity to review the record and
they feel that improvements in this area can, and should, be made so that the
Court has available to it all relevant evidence at trial.
[14]
The
motion, however, gives rise to complexities whose origins lie in the convoluted
and strained history of this action. In particular, progress towards trial
proved so difficult that the case management judge, Justice Hugessen,
established a special procedural regime and a set of deadlines to move matters
along. Even then, the difficulties did not go away and I have spent over two
years as trial Judge attempting to ensure that Justice Hugessen’s scheme is put
into effect and this action proceeds to trial. The regime imposed by Justice
Hugessen in his Pre-Trial Order of March 26, 2004, as modified by subsequent
orders, remains applicable to the present motion. That regime established
parameters and deadlines that were applicable to all participants. In fact, the
Plaintiffs themselves have already relied upon it to exclude evidence that one
of the Interveners sought to introduce de bene esse. Hence, we cannot
deviate substantially from it for the benefit of one of the participants at
this stage in the proceedings without causing unfairness and prejudice to the
others.
[15]
The
Plaintiffs place significant emphasis in this motion on the need to accommodate
the Aboriginal perspective when addressing issues of evidence. However, this
need was precisely what the Court had in mind when it set up the scheme for
excluding witnesses and testing will-says, and I see no reason to adjust that
scheme now in relation to the witnesses named in this motion.
November 7, 2005 Reasons and
Order
[16]
As the
Plaintiffs point out, the starting place is my Reasons and Order of November 7,
2005.
[17]
There are
various parts of that decision that have a bearing on the present motion. The
most important ones are as follows:
138. Mr. Justice Hugessen’s Pre-Trial
Order of March 26, 2004, made it mandatory for “All persons intending to lead
evidence at trial (including oral history evidence)” to “serve witness lists
and ‘will-say’ statements…on or before September 15, 2004.”
139. When the Pre-Trial Order was
made the trial was set to commence on January 10, 2005, i.e. approximately four
(4) months after the date set for serving witness lists and will-says.
140. Mr. Justice Hugessen’s Pre-Trial
Order does not say that a witness list and will-says can be served at any time
before trial. The September 15, 2004 deadline is just as mandatory as the
requirement to serve a witness list and will-says if evidence is to be lead.
141. To allow any person to serve and
file materials after the September 15, 2004 date, or to lead evidence if a
witness is not identified or no will-say is provided, would render Mr. Justice
Hugessen’s Order meaningless.
142. This Court has not changed the
meaning or basic intent of Mr. Justice Hugessen’s Pre-Trial Order in subsequent
orders; it has merely provided an interpretation because of disagreement
between parties, and it has allowed the Plaintiffs additional time within which
to comply.
143. The Court has yet to consider an
application from any party involved in these proceedings to call a witness who
has not been identified, and for whom a will-say has not been provided, by the
date fixed by the Court. There may well be circumstances where the Court should
consider admitting evidence from a witness who has yet to be identified, and
for whom a will-say has yet to be served, but until such application is made,
and the Court hears full argument from counsel, the position is clear: as
matters now stand no person will be giving evidence at the trial who has not
been identified in a witness list and for whom a will-say has not been provided
by the date set by the Court. In the case of the Plaintiffs, this date is
presently set at December 14, 2004. Because the Crown has indicated that it is
willing to overlook any technical infraction and accept those names and
will-says served by 1:00 a.m. on December 15, 2004, the Court is also willing
to use that deadline as the cut-off date for the Plaintiffs will-says.
144. So, as matters now stand, the
relevant orders of the Court make it clear that unless a potential or proposed
witness has been identified by the cut-off date and a will-say statement for
that witness has been produced by the same date, that witness will not be
giving evidence at the trial. For the purposes of this motion, then, the Court
will only be considering the will-says that have been served by the cut-off
date.
145. The Court has already, in its
Reasons of May 3, 2005, expressed its views on the impact of the letter of
December 14, 2004 from the solicitor of record for the Plaintiffs. That letter
indicated the following matters relevant to the present motion:
a) Apart from about seven (7) or eight
(8) witnesses for whom a “short extension would be requested, the Plaintiffs
have been able to identify the witnesses and produce the will-says they need
for the evidence they wish to adduce at trial on all issues they feel are in
the pleadings;
b) The Plaintiffs have concluded that
they are now able to extract the evidence they need from a total of 69
witnesses (that number includes “6 primary expert witnesses”), which represents
a reduction of approximately 50% of the total number of witnesses they said
they needed on September 15, 2004;
c) The Plaintiffs are of the view that
they have fully complied with the will-say standards set in previous Court
orders.
146. Also, as discussed in my Reasons
of May 3, 2005 (see paragraphs 438-448), this impression was confirmed by
subsequent representations made to the Court by Plaintiffs’ counsel.
147. Further, as discussed in my
Reasons of May 3, 2005 (see paragraph 447), the Court is aware that the parties
disagree on whether the seven (7) or eight (8) stragglers identified in the
letter of December 14, 2004, should be allowed. However, unless and until the
Plaintiffs ask the Court to vary its Order of November 25, 2004 to allow additional
witnesses after the cut-off date, and the Court has heard argument from
counsel, the Court cannot consider any of the witnesses for whom will-says were
not provided by the December 14/15, 2004 deadline.
…
170. The November 25, 2004 Order was
a request for information that would allow the Court and the other parties to
see what portions of the old record could be used, and why it was necessary to
call a witness to speak to matters that are already covered in the old record.
So the Plaintiffs have not been very cooperative in assisting with this issue,
at least with any degree of specificity.
171. It seems to me, however, that
their approach has some justification. They are saying that all of their
witnesses, except Mr. Wayne Roan, will be new witnesses who will present new
evidence, either on self-government or related rights, raised in the
amendments, or will supplement evidence given on issues in the first trial. The
Court does, however, want to be clear that duplication will not occur and that efficient
use will be made of the old record. I believe the best way to deal with this
concern is for the Plaintiffs to provide the court, and the Crown and the
Interveners, with specific information that will show how the old record will
be used and why the new witnesses will not duplicate the old record. Now that
the Court has indicated in these Reasons its view of the scope of the
pleadings, the parties can proceed to do this in the near future.
172. As regards the November 25, 2004
Order, it seems to me that the general message contained in the “explanation”
provided by the Plaintiffs is that duplication will not occur because, apart
from Mr. Roan, it will all be new evidence from new people.
173. As regards Mr. Wayne Roan, who
did appear as a witness at the first trial, the Crown says that there is no
explanation on whether his evidence will be different at the second trial. The
Crown also points out that Mr. Roan’s will-say statement contains much of the
same material as he testified to at the first trial.
174.
The Plaintiffs
answer is that Mr. Roan’s will-say also refers to much information which is not
the same as that which he gave at the first trial. I read this as an admission
by the Plaintiffs that there will be duplication; the Plaintiffs merely say:
If only one witness out of all the
witnesses to be called at this trial, was a witness at the first trial, any
duplication, even if present, is negligible in the greater scheme of things and
does not delay…for the delay of this trial.
175. The Plaintiffs also explain that it is readily
apparent from Mr. Roan’s will-say statement that his evidence “is needed
because it relates to the self-government claim raised in the Plaintiffs
amended pleadings.”
176. The distinctions referred to by the Plaintiffs are
not readily apparent to the Court. I think the Plaintiffs could be more
helpful here in achieving efficiencies that are obviously needed when we are
facing a long trial that already has a weighty record available to it.
177. In any event, paragraph 2 of Mr. Justice Hugessen’s
Order of December 8, 2000, directs that any witness who appeared at the first
trial to give evidence should not be called at the second trial until the trial
judge is satisfied that he won’t give the same evidence. As yet, the Plaintiffs
have failed to satisfy the Court on this issue as regards Mr. Roan. I asked
them to do that in the Order of November 25, 2004. They have declined to do so.
…
180. Mr. Justice Hugessen’s Pre-Trial Order of March 26,
2004, mandated that all witness lists and will-says had to be served by the
same deadline. The Plaintiffs took the full time allowed. That order was not
appealed.
181. The October 18, 2004 Order of Russell J. struck the
Plaintiffs’ witness list and will-says for non-compliance, and said that none
of the witnesses could be called without further leave of the Court. That order
was not appealed. The November 25, 2004 Order of Russell J. gave the Plaintiffs
until
December 14, 2004, to serve
their witness list and will-says in a compliant form.
183. None of these orders
contemplated or authorized the Plaintiffs to go out and find new witnesses
after September 15, 2004 and file will-says for them. If that had been the
intention, then the Crown and the Interveners would have been awarded the same
right. The Crown and the Interveners made their decisions about what witnesses
and evidence they wished to call based upon the deadlines set by Mr. Justice
Hugessen. The Plaintiffs cannot breach those deadlines and then use their own
breach as an opportunity to find further witnesses, while the Crown and the
Interveners are confined to the witnesses they identified by the deadline.
…
194. The standards and
degree of disclosure are now well-understood and accepted by all parties,
including the Plaintiffs. I set those standards out in detail in my Reasons of
October 18, 2004. For convenience, I will repeat here the guidelines provided
in October, 2004:
[38] The witness lists
and will say statements produced by the Plaintiffs to date are not in compliance
with Justice Hugessen’s Pre-Trial Order and are not adequate for preparation
and effective trial procedure for a variety of reasons, including the
following:
a. They are not individualized.
The witness lists need to show who the Plaintiffs actually intend to call, how
she or he is in a position to give the evidence, and what each individual
witness will say. A large pool of potential witnesses and a list of topics that
will be addressed at trial by various groups does not permit adequate
preparation and effective trial procedure;
b. The language used by each
witness to be called is not identified. Justice Hugessen’s Pre-Trial Order
specifically says, in para. 9, that the witness list and will say statements
have to include “language if other than English and name of interpreter if
known.” This is information that is obviously required for each witness;
c. They provide a list of topics
that the Plaintiffs intend to address rather than a synopsis of what each
individual witness will say. Such a synopsis does not need to use the actual
words of each witness, but it does need to contain sufficient detail to allow
for challenges on the basis of relevancy and otherwise, and for effective
preparation for cross-examination. For instance, it is not sufficient to say that
evidence will be given concerning the Plaintiff’s laws, customs and practices
or their way of life. The will says should indicate what a particular witness
will say those laws, customs and practices are, and what the way of life relied
upon actually entails;
d. Those will say statements that
pertain to oral histories should identify the actual past practices, customs
and traditions of the community in question, as well as relevant interactions
with other groups.
204. The principal
objectives of the Court since the September 17, 2004 meeting, at least as
regards will-says, have been to ensure that pre-trial disclosure occurs in
accordance with Mr. Justice Hugessen’s Pre-Trial Order of March 26, 2004, and
to seek a solution to the great philosophical divide between the parties over
the scope of the pleadings that will allow them to prepare adequately and
appropriately for the trial, and encourage any possible efficiencies over the
marshalling and presentation of evidence. Obviously, the content of the Plaintiffs’
will-says will reflect their view of the scope of the pleadings, which is why I
believe a solution to the disclosure issue should not be considered in
isolation from the relevance and other deficiency issues raised by the Crown.
…
310. For reasons I have
already given, I believe that the Plaintiffs’ will-says as submitted on or
before December 14/15, 2004, and which are the subject matter of this motion,
were prepared at a time when the Plaintiffs wished to take a much broader
approach to self-government than was contemplated by the amendments to the
pleadings that were allowed in 1998 and 2004. Necessarily, then, the will-says
raise issues and propose evidence that go well beyond the pleadings as drafted.
It means they are a summary of proposed evidence, some of which is relevant to
the pleadings, some of which is obviously irrelevant, and some of which is just
difficult to determine with any degree of certainty at this stage.
311. Also, in answering
this motion by the Crown, the Plaintiffs have not really taken the Court to the
will-says themselves to show how they raise and summarize potential evidence
that is pertinent to the pleadings as the Court has interpreted them. This is
only to be expected, since the Court had yet to provide its views concerning
the scope of the pleadings at the time when the will-says were drafted. But it
means that the Court is left to review the will-says, together with the
explanations provided by the Plaintiffs, and to do the best it can to assist
the parties to resolve the scope and relevance issues that have been plaguing
these proceedings. I have already said that extreme caution should be
exercised at this point because the Court is not yet aware of how traditional
rules of evidence may have to be modified to accommodate the Aboriginal
perspective. I am also disposed to take a very conservative approach to
excluding a witness and/or an area of proposed evidence. At this stage, any
doubt and ambiguity must be resolved in the Plaintiffs’ favour. But what could
be years of trial should not be devoted to hearing evidence that is obviously
not relevant to the pleadings and where the Plaintiffs, having been given the
opportunity to do so as part of their written explanations and their response
to the Crown in this motion, have not attempted to explain to the Court why
they have changed their position from the time they sought the amendments in
1998, or how the will-says relate to what they said was the scope of the
pleadings at that time.
312. The Court also has to
be consistent with previous rulings and exclude witnesses and/or evidence where
there is inadequate disclosure in accordance with the standard clearly
articulated by the Court and accepted by the Plaintiffs. The Court must try and
give the Plaintiffs the scope they need to make the case that actually appears
in the pleadings, while getting rid of the more obvious attempts by the
Plaintiffs to introduce the broad concept and politics of self-government into
these proceedings by loading their witness list and will-says with advocates
and evidence that would take the Crown and the Court into areas and topics that
do not assist with the basic issues. The will-says make it clear that the
Plaintiffs feel extremely angry and frustrated because their self-government
negotiations with the Government of Canada have not achieved as yet the results
they desire. And they feel they have been betrayed and misled in this regard
by the Government of Canada and the federal bureaucracy. They also believe that
the Court and the rest of Canada is being misled by the same people. The anger
and the frustration are entirely understandable (although I don’t mean to
suggest that what the Plaintiffs allege is true or sustainable), but it does
not provide a legal justification for loading these proceedings with matters
that are, strictly speaking, outside of the scope of the legally defined
issues.
313. The approach taken by
the Court in this motion, I believe, preserves the spirit of previous Court
orders that were intended to give the Plaintiffs the time they said they needed
to complete their pre-trial disclosure, and to assist the parties by looking at
the difficult issues of scope of pleadings and relevance, and providing
guidance in that respect.
314. While the Plaintiffs
must have the scope to make the case actually pleaded, in view of what has
occurred to date in these proceedings, I believe it would be unjust and unfair
for the Crown to have to prepare itself, now, to deal with a large body of
evidence that does not conform to the spirit and intent of the pleadings, read
in the context I had already described. That would be for the Court to put the
Crown through a process that, until very recently, the Plaintiffs have said is
not part of these proceedings. I believe it is the Court’s duty to do
something about the relevance issues now because the parties have become so
polarized, and the volume of proposed witnesses and clearly irrelevant evidence
is so large, that the Court must try for greater precision and efficiency than
the present state of the Plaintiffs’ will-says would allow if we just proceed
straight to trial.
315. At the same time, of
course, the Court remains committed to the position it took in its Reasons of
November 25, 2004:
… the court is very much
concerned to ensure that the Plaintiffs are given the opportunity to make their
case in the most effective way possible. The Court does not wish to interfere
with normal trial procedure or place obstacles in the way of the Plaintiffs
calling those witnesses they feel they need to assert their position.
316. In saying this, it is
understood, of course, that the Plaintiffs’ case is what the pleadings say it
is, as represented by Plaintiffs’ own counsel, and as consistently interpreted
by this Court. It is not the expansive approach to self-government that the
Plaintiffs have, or late, attempted to impose on these proceedings and which,
as the will-says show to a considerable extent, they now wish to conflate with
their general dealings with the Government of Canada over a full-blown right to
self-government.
…
324. In view of the
preceding discussion, and in order to balance the competing interests in a way
that will result in the most just, expeditious and efficient determination of
these proceedings on the merits, the Court believes that the following
principles and procedures should govern its decision in this motion:
a) The Plaintiffs
should be entirely free to lead all relevant and otherwise admissible evidence
they have disclosed that they propose to lead in their will-says served within
the time-frame which the Plaintiffs requested and the Court allowed, i.e.
December 14/15, 2004;
b) In order to lead
evidence in accordance with paragraph one (a) above, a summary of that evidence
must have been disclosed in a way that meets the standards for disclosure
already set by the Court in previous decisions and orders, which standards have
been accepted by the Plaintiffs as being applicable to them and other parties
to the proceedings;
c) For purposes of
determining general relevance the parties and the Court will be guided by the
general parameters set out in these Reasons and, in particular, those areas of
general exclusion set out in paragraph 321 of these Reasons;
d) Where there are
discrepancies between a will-say and the oral history summary, proposed oral
history evidence shall not be excluded for that reason alone, but the Crown may
seek an extension of time or other accommodation from the Court to allow it to
deal with any such discrepancy that may have caused prejudice to the Crown.
However, unless an oral history witness was identified as such and a summary
provided by the deadline set out in Mr. Justice Hugessen’s Pre-Trial Order of
March 26, 2004, the Plaintiffs cannot now introduce oral history witnesses by
way of will-says;
e) The Court will
review the will-says submitted by the Plaintiffs by the December 14/15, 2004
deadline (other than those will-says for witnesses who were not identified by
the September 15, 2004 Pre-Trial Order deadline) and provide guidance on which
proposed witnesses or areas of proposed evidence do not correspond with the
pleadings as interpreted by the Court in the Court’s Reasons for this motion,
and those witnesses will not be called;
f) Where
there is ambiguity as regards exclusion, the Plaintiffs should have the benefit
of the doubt at this stage;
g)
Those witnesses who did not appear on the
witness list served by the Plaintiffs on September 15, 2004, but who did appear
on the list served on December 14, 2004, should not be called by the Plaintiffs
without further order of the Court. The purpose of the October 18, 2004 Order,
was not to give the Plaintiffs, or any other party, time to go out and find
more witnesses than the ones they had named on the deadline set for all parties
to name their witnesses. The purpose was to give the Plaintiffs time to come to
the Court with a "workable solution" to their non-compliance. These
witnesses are:
Ann
Maje-Raider
Chris
Shade
Joe
Bellerose
Jacob Bell
Oliver
Columb
Ellerlie
Starlight
Joe Whitehead
Clifford
Cardinal
David
Midbo
Robert
Horseman
In view of
what the Court has now said about the scope of the pleadings, if the Plaintiffs
still wish to call any of these witnesses, they should come to the Court by way
of formal motion so that the Court can assess the situation and make whatever
further adjustments to Mr. Justice Hugessen's Pre-Trial Order of March 26,
2004, are deemed advisable and acceptable;
(h)
Those seven (7) or eight (8) witnesses
identified by the Plaintiffs after the December 14, 2004 deadline should not be
called without further order of the Court sought by way of formal motion;
(i)
As regards those witnesses who appeared
on the witness list provided by December 14/15, 2004, and for whom will-says
and explanations were provided, the Court does not, generally speaking believe
they should be excluded at this stage of the proceedings for reasons other than
non-compliance with the pre-trial disclosure requirements set by the Court, or
because they are irrelevant and/or unnecessary for the issues raised in the
pleadings. This means that many of the objections raised by the Crown to the
evidence given, or to be given, by such witnesses should be raised and dealt
with in the usual way at trial. The reason for this is that the Court does not
know at this stage what adjustments to traditional rules of evidence may be
necessary, or how it should comply in this regard with directions given by the
Supreme Court of Canada;
(j)
The purpose of any order made by the Court
on this motion is solely to complete the process began on September 17, 2004,
as more specifically defined in the Orders of October 18, 2004 and November 25,
2004. That process was intended to ensure compliance with Mr. Justice
Hugessen's Pre-Trial Order of March 26, 2004, to effect full pre-trial
disclosure by ordering compliant will-says, to try and resolve the difficulties
occasioned by the "philosophical difference" over the scope of the
pleadings, and to indicate which witnesses and/or evidence the Plaintiffs
should not call, either because of their continuing failure to make disclosure
in accordance with the standards articulated by the Court, or because the
proposed witnesses and/or evidence clearly went beyond the scope of the
pleadings. Any decision made by the Court in this regard:
(i)
is not to be taken as any kind of affirmation by the Court
that any witnesses and/or evidence not excluded at this stage is admissible at
the trial; and
(ii)
is not to be taken as a restriction on the Crown or the
Interveners to challenge any witness and/or evidence called by the Plaintiffs
at the trial on any ground whatsoever, including failure to meet the standards
of disclosure and/or relevance.
But the Plaintiffs must be given flexibility too. The dangers of excluding
witnesses and evidence at this stage are obvious. As the trial evolves, it may
become apparent that proposed evidence actually referred to and revealed in a
will-say submitted by the deadline met the required standards of disclosure and
is relevant and otherwise admissible. Hence, it is only fair that the
Plaintiffs should be allowed to draw this to the attention of the Court and,
after full argument, seek the consent of the Court to lead that evidence. This
is not an invitation to the Plaintiffs to re-hash at trial the issues I have
decided in this motion. The appropriate way to disagree with the Court's view
of scope of pleadings and principle areas of exclusion is by way of appeal. But
I do feel that some flexibility is required because of the difficulties of
predicting the future at this stage, and I do not believe that the Plaintiffs
should be put to the trouble of appealing this decision merely because, in
reviewing extensive and complex will-says, I have overlooked something that is
fully disclosed, relevant and necessary to the pleadings as I have defined
them.
I rely
entirely upon the good judgment of counsel not to abuse the purpose of the
Order I will make in this motion and not to seek to introduce evidence that is
obviously excluded by the spirit and intent of my Reasons for Order and Order,
except, of course, if any appeal is taken and allowed.
On the
other hand, where I indicate that the Plaintiffs should be given the benefit of
the doubt and that a witness may be called, I also rely upon the good judgment
of counsel not to try and lead evidence through that witness that does not
accord with what I have said in the Reasons about the scope of the pleadings
and general areas of exclusion;
(k)
In accordance with Mr. Justice Hugessen's Order
of December 2000, Mr. Wayne Roan should not be called as a witness at the
second trial unless or until the Plaintiffs comply with that Order;
(l)
In accordance with the Court's Orders of
October 18, 2004 and November 25, 2004, those witnesses not already excluded
for other reasons, and/or those portions of their proposed evidence that should
not be called, are set out in Schedule "A" attached to these Reasons
for Order and Order;
(m)
The amount of preparation time required and trial date
will be set by the Court after hearing from counsel for all parties at a duly
convened conference meeting, where we will discuss the outstanding issues that
need to be addressed and ways of dealing with them that will get us to trial as
quickly as possible..
ORDER
FOR THE REASONS GIVEN:
1.
Without further leave of the Court, Ann Maje-Raider, Chris Shade, Joe
Bellerose, Jacob Bell, Oliver Columb, Ellerlie Starlight, Joe Whitehead,
Clifford Cardinal, David Midbo and Robert Horseman shall not be called as
witnesses at the second trial;
2.
Without further leave of the Court, in accordance with Mr. Justice Hugessen's
Order of December, 2000, Mr. Wayne Roan shall not be called as a witness at the
second trial;
3.
Without further leave of the Court, no witness for whom a will-say statement
was not served and filed by December 14 and 15, 2004, (as such deadline has
been extended by consent of the Crown to early on December 15, 2004) shall be
called by the Plaintiffs at the second trial;
4. As
regards witnesses for whom a will-say and explanation were served by the
deadline imposed by the Court in its November 25, 2004 Order, those witnesses
and/or proposed evidence shall not be called as indicated in Schedule
"A" attached to this Order and Reasons for Order without further
leave of the Court, such leave only to be sought in accordance with the
Reasons;
5. The
date for the trial shall be established by the Court after hearing counsel for
all parties at a duly convened conference to consider the trial date and any
matter related to these proceedings.
6.
The parties are at liberty to address the Court on the
issue of costs.
[18]
If these
excerpts are reviewed in the full context of the November 7, 2005 decision, and
the sequence of events leading up to that decision, I think it is clear what
the Court had in mind in terms of the Plaintiffs’ scope to rehabilitate
excluded witnesses and renovate will-says.
[19]
The
general picture can be summarized as follows:
a)
Where
compliant disclosure has been made for any proposed witness that the Court has
excluded, then the Plaintiffs are free at any time as the trial evolves to seek
the consent of the Court to call that witness and lead compliant and otherwise
admissible evidence;
b)
In the case
of those witnesses who were excluded because they did not appear on the
September 15, 2004 witness list, but did appear in the December 14, 2004 list,
the Plaintiffs are at liberty to seek leave of the Court to call them. But in
so doing the Plaintiffs must show that there was good reason why those
witnesses could not have appeared on the September 15, 2004, list, and they satisfy
the jurisprudence for an extension of time in order to accommodate those
witnesses. Any such witnesses must also have satisfied the disclosure
requirements for compliant will-says by the December 14, 2004 deadline;
c)
Mr. Wayne
Roan cannot even be considered as a witness until the Plaintiffs have complied
with Justice Hugessen’s Order of December 7, 2000. Once compliance with that
order has occurred, Mr. Roan can be considered as a potential witness but will
be subject to the usual requirements of having been identified as a witness by
September 15, 2004, and having completed a compliant will-say by December 14,
2004.
[20]
I think it
would also assist at this stage to recall the following words from Justice
Hugessen’s Reasons and Order of December 7, 2000:
Of course, plaintiffs are correct when
they say the selection of what evidence to lead is a matter for counsel and it
would be wrong to order without consent that the whole of the record of the
first trial simply be placed before the trial judge for him to decide so to
speak on the record. It would be equally wrong, however, to allow counsel to
call a procession of witnesses who have already given their evidence in this
case on the issues herein and who could do no more than repeat in the same or
indifferent terms the essence of the evidence they have already given. That
would be neither fair, expeditious, nor cost-efficient and those are the
guidelines by which I, as Case Management judge, must be guided.
[21]
In terms
of the two aspects of redemption that the Plaintiffs seek in this motion
(reinstatement of witnesses and renovation of will-says) I believe it is
immediately apparent from the above summary that the renovation of will-says is
not an option at this stage.
[22]
I specifically
say in my November 7, 2005 decision at paragraph 324(a) that the Plaintiffs are
free “to lead all relevant and otherwise admissible evidence they have disclosed
that they proposed to lead in their will-says served within the time-frame
which the Plaintiffs requested and the Court allowed, i.e. December 14/15
2004.”
[23]
Those
paragraphs of the decision that allow the Plaintiffs to seek leave to
rehabilitate witnesses do not give the Plaintiffs leave to renovate will-says
in order to achieve that end. The Plaintiffs can only seek to rehabilitate
witnesses on the basis of will-says already submitted by the December 2004
deadline.
[24]
There are
obvious reasons why this has to be the case: the Court has already, in its
earlier order of November 25, 2004, granted the Plaintiffs the opportunity and
the time they said they needed to renovate their will-says, and any such
renovation had to be completed by December 14, 2004.
[25]
In other
words, the Court has already granted the Plaintiffs renovation relief with
respect to their will-says, and has even been told by the Plaintiffs through
their former counsel and their solicitor of record that the will-says submitted
on December 14, 2004 were fully compliant. As my November 7, 2005 decision
makes clear, it is my view that some of the will-says submitted at that time were
not compliant. But that does not change the fact that I have twice resisted the
Crown’s arguments to strike the Plaintiffs will-says for non-compliance and
proceed to trial on the record of the first trial, and I have already given the
Plaintiffs the breathing space they said they needed to submit a compliant
witness list and accompanying will-says.
[26]
So I don’t
believe it is accurate for the Plaintiffs to say in this motion that, in
seeking to renovate will-says, they are following the letter, or even the
spirit, of my November 7, 2005 decision.
[27]
I believe
the issue of renovation is dealt with in my November 7, 2005 and my November
14, 2004 orders which, when read together, make it clear that the will-says
that will be used at the trial, and for the purpose of adjudicating compliance,
are the will-says that were submitted by the December 14, 2004, deadline.
[28]
The present
motion by the Plaintiffs is based upon my November 7, 2005, Order. My reading
of that Order in its full context and on its face leads me to the conclusion
that it does not contemplate the renovation of will-says. This view is
supported, in my view, by the comments I made in that decision regarding the
will-says of individual witnesses.
[29]
In the
case of Mr. Shade, I say that his evidence could have some relevance and that
if the Plaintiffs seek leave to rehabilitate him they should “indicate which
portions of his will-say they still regard as relevant, given the Reasons on
this motion.”
[30]
I believe
this makes it clear that Mr. Shade was excluded because he did not appear on
the September 15, 2004, list and because I found his proposed evidence to be of
dubious relevance and lacking in detail on some topics, but, if the Plaintiffs
really feel he could provide relevant evidence then they should show the Court
how the will-say that was submitted for him is compliant and relevant. There is
no suggestion here that the Court would consider a renovated will-say.
[31]
Likewise,
I can find nothing in my comments for the other witnesses (I did not consider
Mr. Crowshoe’s will-say because it was served beyond the December 14, 2004,
deadline) that would suggest that the Court would entertain a motion for
renovation of will-says.
[32]
The reason
for this, quite apart from the wording in my decision, is that Justice
Hugessen’s Pre-Trial Order of March 26, 2004 clearly sets the will-say deadline
at September 15, 2004, and my decision of November 7, 2005 merely extends that
deadline to December 14, 2004 for the benefit of the Plaintiffs. Those
decisions still stand. If they did not, the Plaintiffs would have no witnesses
and will-says for the second trial because I struck the Plaintiffs whole
witness list in my Order of October 18, 2004 and directed that no witnesses
could be called until compliance occurred and the Court ordered otherwise. It
would be a very serious matter, indeed, for the Court to, once again, give the
Plaintiffs even more time to renovate will-says that should have been served on
September 15, 2004.
[33]
Even if I
were to regard the present motion as a request to renovate will-says that falls
outside my previous orders (The Plaintiffs base their motion on my November 7,
2005, Order), I do not believe that the Court should consider such a request at
this time. To do so would be entirely inconsistent with previous Court orders
which have made it clear, I believe, that the Plaintiffs had to produce
compliant will-says by December 14/15, 2005. To allow the Plaintiffs to renovate
will-says now would be to allow them to use their own breaches and delays as an
opportunity to extend the time for the production of will-says and, in my view,
this would be unfair and prejudicial to the Crown and the other participants,
particularly at this very late stage of the pre-trial process. It would also be
inconsistent with previous decisions.
[34]
So I
believe that my November 7, 2005 decision does contemplate that the Plaintiffs
can seek leave to rehabilitate these particular witnesses, but they must do so
on the basis of the will-says submitted on or before the December 2004
deadline, and on the basis of any directions I may have given for a particular
witness in my November 7, 2005 decision. The fact that both this Court and the
Federal Court of Appeal have taken a narrow approach in interpreting the
pleadings does not provide a rationale for revised will-says. The narrow basis
was in the pleadings when the Plaintiffs chose their witnesses and composed
their will-says. The narrow basis was there before the September 15, 2004
deadline. The fact that this Court and the Federal Court of Appeal may have now
excluded proposed evidence that would support broad self-government claims does
not change this situation.
Criteria for Rehabilitation
General
[35]
In a
general sense, in order to persuade the Court that any of the five witnesses
named in this motion should be called, the Plaintiffs must demonstrate
compliance with the will-say criteria and any other conditions prescribed in
relevant Court orders for the calling of witnesses. They also need to satisfy
the jurisprudence related to Rule 8 that establishes when an extension of time
should be granted. Not all of the five witnesses named in this motion can be
treated in the same way because they were excluded for different reasons.
However, before I consider each witness in turn, I believe some general remarks
concerning the applicability of Rule 8 to the present circumstances would be of
assistance.
Rule 8
[36]
The
Parties agree that, in seeking an extension of time within which to reinstate
the five witnesses named in this motion, the Plaintiffs must satisfy Rule 8 of The
Federal Court Rules, 1998 and the jurisprudence associated with that rule.
[37]
Rule 8
reads as follows:
|
(1) On motion, the Court
may extend or abridge a period provided by these Rules or fixed by an order.
(2) A motion for an
extension of time may be brought before or after the end of the period sought
to be extended.
(3) Unless the Court
directs otherwise, a motion to the Federal Court of Appeal for an extension
of time shall be brought in accordance with rule 369.
|
(1) La Cour
peut, sur requête, proroger ou abréger tout délai prévu par les présentes
règles ou fixé par ordonnance.
(2) La requête
visant la prorogation d’un délai peut être présentée avant ou après
l’expiration du délai.
(3) Sauf
directives contraires de la Cour, la requête visant la prorogation d’un délai
qui est présentée à la Cour d’appel fédérale doit l’être selon la règle 369.
|
[38]
Also, as
both parties point out, the criteria to be considered when applying Rule 8 are
discussed in cases such as Grewal v. Canada (Minister of Employment and
Immigration), [1985] 2 F.C. 263 (C.A.); Stanfield v. Canada, [2005]
F.C.J. No. 466 (T.D.); and Canada (Attorney General) v. Hennelly, [1999]
F.C.J. No. 846 (F.C.A.).
[39]
Generally
speaking, on the facts before me, the Plaintiffs need to establish:
a) A continuing intention to call
the witness in question, or to seek leave of the Court to do so;
b) That the application has some
merit;
c) That no prejudice arises from
the delay;
d) That there is a reasonable
explanation for the delay.
[40]
I believe
the Plaintiffs are correct when they argue that the weight that the Court will
give to the various factors will vary with the circumstances of each case. In
fact, on this motion, I believe that the correct balance needs to be considered
in relation to each individual witness, unless that witness is excluded for
some reason that does not require the Court to consider Rule 8.
THE WITNESSES
Chris Shade
[41]
I
specifically directed in my November 7, 2005 decision that if the Plaintiffs
sought leave to call Mr. Shade they should indicate “which portions of his
will-say they still regard as relevant given the Reasons on this motion.”
[42]
The
Plaintiffs have not done this, but has chosen instead to submit a different
will-say that substantially revises the one served by the December 14, 2004
deadline and which is mainly in the form of an oral narrative.
[43]
So I still
do not know which portions of Mr. Shade’s original will-say to review for
compliance in light of the narrow interpretation of the pleadings or, indeed,
whether Mr. Shade has anything to say that is relevant to the pleadings as I
have interpreted them.
[44]
Because
the Plaintiffs have chosen not to assist the Court as directed, I do not
believe I have any grounds upon which to consider the rehabilitation of this
witness. I cannot see that he brings any compliant disclosure to the Court’s
interpretation of the pleadings.
[45]
In
addition, for reasons that I give in relation to Mr. Whitehead, the Plaintiffs
have not satisfied me with respect to the Rule 8 requirements for this witness.
Joe Whitehead
[46]
I excluded
Elder Whitehead because he did not appear on the Plaintiff’s September 15, 2004
list but I gave no indication concerning problems with the will-say that was
later submitted for him.
[47]
My review
of his will-say suggests that it is general, of dubious relevance in places,
but that he does say one or two things about community membership and
governance. I note the Crown’s objections that this will-say lacks specifics
and there is no clear indication as to how this evidence will relate to the
Plaintiffs.
[48]
However,
on the principle that I should err on the side of caution and give the
Plaintiffs the benefit of the doubt at this stage, I would say that Elder
Whitehead should not be excluded at this stage for non-compliance and that
problems associated with his will-say and his evidence can be dealt with at
trial.
[49]
So the
issue for the Court with respect to Elder Whitehead is whether the Plaintiffs
can satisfy the Rule 8 criteria in his case.
[50]
In terms
of those criteria, even if I were to accept a continuing intention and some
possible merit, I can find no real explanation for the delay and I believe that
the Plaintiffs have left the motion so late for this witness that there is
prejudice to the Crown. I can certainly accept the Plaintiffs’ argument that,
until the Federal Court of Appeal heard the appeal of my November 7, 2005 decision,
it made no sense to seek leave to have this witness rehabilitated. But the
Federal Court of Appeal rendered its decision in June 2006, and there was no
need to wait until October 20, 2006 for this witness.
[51]
Also, as
regards a reasonable explanation for delay, Plaintiffs’ counsel asserts that
“with respect to Chris Shade and Joe Whitehead, the Plaintiffs were simply not
aware of these witnesses until after the September 15, 2004 deadline.” But this
is not what the affidavit evidence submitted with this motion reveals. Ms.
Partridge’s affidavit says that Ms. Twinn informed her that Mr. Whitehead did
not appear on the September 15, 2004 witness list because “his relevant
evidence did not become known to her until after September 15, 2004;
specifically, when she met him in October or November, 2004 at her office in
Slave Lake.”
[52]
At best,
this evidence is highly ambivalent as it does not explain clearly for the Court
whether Ms. Twinn had not met with Mr. Whitehead before September 15, 2004, or
whether she had met with him but had failed to realize at that time that he
could give “relevant evidence.”
[53]
In a
motion such as the present one, the Plaintiffs must provide a clear explanation
that will allow the Court to see that, notwithstanding reasonable due diligence,
their counsel was just not aware of these witnesses or that they were in a
position to provide relevant evidence on the issues in the pleadings. I just
don’t have that clear explanation in this motion.
[54]
For these
reasons, then, the Plaintiffs have not satisfied me on Rule 8 with respect to
Mr. Whitehead and I do not believe it would be appropriate to add him to the
list of witnesses to be called.
Reginald Crowshoe
[55]
A will-say
was filed for Mr. Crowshoe in December 2004, but I did not review it earlier
because it was served after the deadline. It was served, in fact, on December
15, 2004, but beyond the additional time that the Crown consented to extend to
the Plaintiffs.
[56]
As
revealed in the affidavit of Ms. Partridge, and as reflected in the exhibit she
refers to, the Plaintiffs failure to serve Mr. Crowshoe’s will-say by the
December 14, 2004 deadline was pure inadvertence.
[57]
I do not
believe that inadvertence of this kind should be used to exclude this witness
or his will-say. The mistake was detected within a matter of hours and the
Crown received the materials on December 15, 2004. See Armonikos Corp. v. Saskatchewan Wheat Pool, [2002] F.C.J. No. 697, FCT
526 at paragraph 9.
[58]
Admittedly,
it has to be taken into account that this material should have been served on
September 15, 2004, so that the Plaintiffs failure to meet the extension they
were granted is no small matter. But in the general scheme of things I cannot
see how the Crown or the other participants were really prejudiced by this slip.
[59]
Also, when
I consider the other Rule 8 criteria, the Plaintiffs have convinced me that an
extension of time would be appropriate in this case. The Crown has had this
proposed evidence since December, 2004. The slip itself is adequate explanation
for the failure to serve on time and I cannot accept that the Crown has been
prejudiced by receiving this will-say a day late.
[60]
This means
that the will-say should now be reviewed for compliance and admissibility in
accordance with the criteria set by the Court and followed by the parties
themselves.
[61]
My review
of this will-say suggests that it is general in places and lacking in detail,
but Mr. Crowshoe does say he can speak to governance issues for Tsuu T’ina and
there is some mention of membership issues.
[62]
In accordance
with the principles I have applied with other witnesses, that the Plaintiffs must
be given the benefit of the doubt at this stage, the Court agrees with the
Plaintiffs that this witness should be called, but only on the basis of the
will-say that was served for him on December 15, 2004, and subject to any
objections that the Crown or the Interveners may wish to raise at trial and the
other provisos set out in my November 7, 2005 decision.
William Dreaver
[63]
The
reasons I gave for excluding Elder Dreaver were that, based upon his will-say,
he was being called to give evidence on general self-government and general
problems for aboriginal people. I was unable to connect anything he proposed to
say with my interpretation of the pleadings.
[64]
Nothing
has changed. Elder Dreaver’s will-say is non-compliant and he should not be
called. I believe this is confirmed by the fact that Plaintiffs have attempted
to introduce a new will-say for this witness. His original will-say suggests he
cannot help the Court with regard to the issues in the pleadings.
Wayne Roan
[65]
When I
excluded Mr. Roan, I indicated that “His will-say refers to matters that are
not focussed on the issues in the pleadings and/or do not provide the required
detail.”
[66]
This
problem is still there and, based upon his old will-say, the Plaintiffs have
still not satisfied the Court in relation to paragraph 2 of Justice Hugessen’s
Order of December 8, 2000 that Mr. Roan is likely to give evidence that he did
not give at the first trial. I am not satisfied that Mr. Roan has anything
materially new to say that he did not say extensively at the first trial. The
essence of his evidence on the pleadings as I have interpreted them remains the
same. I agree with the Plaintiffs that there is a significant difference
between duplication and corroboration both with regard to individual witnesses
and witnesses as a group. But there is a special issue with regard to this
action that must be kept in mind: the fact of an extensive record from the
first trial that Justice Hugessen ruled should not be repeated at the second
trial means that the Plaintiffs must come forward in a forthright way and show
the Court that, if a witness who appeared at the first trial is called at the
new trial, that witness will not repeat the essence of what he or she said at
the first trial. I have asked the Plaintiffs on several occasions now to
satisfy the Court and the other participants on this point. They still have not
done do. Bearing in mind what Justice Hugessen was trying to prevent, I can see
no reason to call Mr. Roan again when he gave such a full account of the points
listed in his will-say at the first trial.
[67]
On this
basis, the Court cannot grant leave to the Plaintiffs to call Mr. Roan and
there is no need in relation to this witness to consider Rule 8 issues. The
Plaintiffs have had every opportunity and a significant period of time to
explain to the other participants and the Court what else Mr. Roan could
usefully say on the pleadings that he did not say at the first trial. Their
failure to do this suggests to me that Mr. Roan has already provided what
contribution he is capable of making.
ORDER
THIS COURT ORDERS that
1.
For
reasons given, the motion is denied for all witnesses except Mr. Reg Crowshoe;
2.
Mr.
Crowshoe is added to the list of those witnesses the Plaintiffs are entitled to
call at the trial;
3.
The
proposed new will-say for Mr. Crowshoe is rejected and any evidence he gives at
the trial will be based upon the will-say filed on his behalf on December 15,
2004;
4.
Mr. Crowshoe’s
evidence, and his will-say, will be subject to all of the conditions and
provisos contained in my Reasons and Order of November 7, 2005 regarding the
challenging of evidence at trial;
5.
The
parties and the Interpreters are at liberty to address the Court on the matter
of costs for this motion.
“James Russell”
Judge
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